Houssel v. Boggs
| Citation | 22 N.W. 226,17 Neb. 94 |
| Parties | CHARLES C. HOUSEL, PLAINTIFF IN ERROR, v. GEORGE H. BOGGS AND LEN W. HILL, DEFENDANTS IN ERROR |
| Decision Date | 13 January 1885 |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before WAKELEY, J. The action was one of ejectment brought by Boggs & Hill against Housel. They claimed title as grantees of the original owner of the lands in controversy. Housel claimed title under tax deeds dated May 12, 1875, and April 19, 1876 with possession from 1875. The action was commenced in 1880.
AFFIRMED.
John L Webster, for plaintiff in error.
W. J Connell, for defendants in error.
The question presented by the record in this case is, whether or not the district court erred in excluding from the jury two tax deeds offered in evidence by the plaintiff in error. It is conceded that these deeds, failing to recite the place of sale, are void and do not carry with them the constructive possession of the property sought to be conveyed. But it is claimed by the plaintiff in error that as the proofs showed he had had actual possession since 1875--more than three years--and the defendants in error were out of possession, the bar of the statute of limitations has run in his favor. It is also claimed that the question now presented has not been heretofore determined by this court in the cases of Sutton v. Stone, 4 Neb. 319, and Towle v. Holt, 14 Neb. 221, 15 N.W. 203, and the plaintiff in error has sought to show the distinction, which in some respects has been made apparent.
The attorney for the plaintiff in error has presented a very able and exhaustive analysis of the law upon the subject as declared by text writers and the ultimate courts of other states and were the question now before this court for the first time the writer would be inclined to follow them, notwithstanding the peculiarity of our statutes upon the subject of taxation and the rights of holders of tax liens. But as the law of this state may be considered to have been settled since the decision of the case of Sutton v. Stone, in 1876, and the doctrine there laid down followed by subsequent cases, we do not feel inclined to again open the question and adopt another and conflicting rule, especially so since the holding in those cases is, in view of our statute, equitable and just to as full an extent, at least, as would be the rule contended for by plaintiff in error. Another reason why the decision in those cases should not now be overruled is, as stated by Justice MAXWELL in the opinion in the case of Towle v. Holt, it has "to some extent become a rule of property, and if changed at all it should be done by the legislature."
In Sutton v. Stone, LAKE, CH. J., in the opinion quoted with approval the language used by the supreme court of Kansas in Bowman v. Cockrill, 6 Kan. 311, in which it is said: "It is only where the tax deed is good prima facie, and where on account of some irregularity in the tax proceedings, the deed is void, or, more properly...
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